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The prosecutor's appeal is dismissed.
Reasons
1. Comprehensively taking account of the evidence presented by the prosecutor as to the grounds of appeal, it is sufficiently recognized that the Defendant arbitrarily disposed of, and embezzled from, the automatic set machines kept by the Defendant for the said company under each lease contract with the Co., Ltd. (hereinafter “the instant automatic set machines”) and the main and fluid steam four steams (hereinafter “the instant main and fluid steam”) with the intent of unlawful acquisition.
Nevertheless, the judgment of the court of first instance that acquitted the Defendant of the facts charged of this case is erroneous in matters of law which affected the conclusion of the judgment.
2. Determination:
A. The first instance judgment of the first instance is acknowledged that the Defendant sold the site, building, etc. of G gas stations to J, and that J had the Defendant use and take profit from the instant automatic tea and liquor and steam, but the Defendant sold it with the intent of illegal acquisition.
It is difficult to conclude that it is, and there is no other evidence to acknowledge it, and not guilty of the facts charged in this case.
B. The lower court’s judgment (i) The relevant legal doctrine is established when a person who keeps another’s property embezzleds the property. The embezzlement as a requirement for embezzlement refers to all the acts of realizing the intent of unlawful acquisition, and the crime of embezzlement is established when there is an objective act that can be perceived from the outside of the intent of unlawful acquisition.
Here, the prosecutor must prove that there was an act of embezzlement as an act of realizing an intent to acquire unlawful acquisition. Such proof should be based on strict evidence with probative value that makes a judge not having any reasonable doubt. If there is no such evidence, even if there is suspicion of guilt against the defendant, the interest of the defendant should be determined (see Supreme Court Decision 2012Do7371, Sept. 27, 2012).